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Attorney: David Boies, 59 Firm: Armonk, N.Y.’s Boies, Schiller & Flexner Case: U.S. v. Microsoft Corp., No. 98-1232 (D.D.C.) Trying a case in front of a judge rather than a jury colors the presentation considerably, says David Boies, lead trial counsel for the U.S. Department of Justice in the antitrust action against Microsoft. “With a judge, you’re always going to be a little more complicated, a little more to the point,” he says. “You will spend less time on dramatic points that would catch a juror’s attention.” Because a judge is more likely to catch on quickly to a complex theme or argument, “you also will not spend as much time with being repetitive,” he says. Cross-examinations also have to be different, he says. An attorney still has to attempt to tear at the credibility of an opponent’s witnesses. But, he says, “the cross-examination will be more complicated than with the jury.” In the recent antitrust case against Microsoft, for example, he adjusted the cross of Microsoft’s economics expert because he was trying the case before U.S. District Judge Thomas Penfield Jackson. The expert had relied heavily on certain survey data, and Boies felt that there were serious problems with it. To elicit this, he says, “I had to ask very complicated questions. With a jury, I would have hesitated to go down that road.” Although the approach was different, the result in the action against Microsoft was similar to the endings of many of Boies’ trials — he won. Long before the Microsoft trial, Boies was considered one of the nation’s leading trial attorneys in complex litigation, representing both plaintiffs and defendants. Big wins include the recovery of $200 million from United Airlines and American Airlines for client Continental Airlines on a claim alleging antitrust and Racketeer Influenced and Corrupt Organizations Act violations; the defense of CBS and “60 Minutes” correspondent Mike Wallace in a libel action; and the defense of IBM on charges of monopolization and predatory pricing. During the savings and loan crisis, he was counsel for the Federal Deposit Insurance Corp. He was recently hired by Napster to handle the copyright infringement litigation against it. The complaint against Microsoft was that the company had established a monopoly of the personal computer operating system market, that Microsoft had attempted to establish a monopoly of the Internet browser market, and that the company had violated Sections I and II of the Sherman Antitrust Act through certain anticompetitive acts. In any Section II litigation, Boies notes, “you have to prove monopoly power and anticompetitive practices. No one, not even the people at Microsoft, didn’t think that Microsoft had monopoly power, but there was more debate over whether there was anticompetitive conduct.” CLAIMED SUPERIORITY Microsoft contended that it was dominant because of its superior product, says Boies, not because of any anticompetitive conduct. The government contended that Microsoft had attempted to establish a monopoly by bundling its browser with its operating system. “Microsoft said they had combined the software code of the browser and the operating system for performance advantages,” Boies says. “We needed to get into the internal documents of Microsoft to prove” that this was done for anticompetitive reasons. MASSIVE DOCUMENT SEARCH The government team amassed thousands of documents. In the days before the opening statement of the trial, Boies says, “I read personally every document we were going to offer in evidence,” some 3,000 documents. As he read these documents, Boies stashed items in a stack of manila folders. “The folders were arranged by subject matter, including key evidence, documents, prior testimony, deposition testimony.” Boies relied heavily on these manila folders to organize his material so that he could find relevant material quickly at trial. Computers were used for original searches, he says, “but once I have the heart of the case, I want it easily accessible in physical form.” In the opening, Boies established a few simple themes, he says. “Microsoft possessed monopoly power. PC manufacturers had no viable alternative to the Microsoft operating system. Microsoft repeatedly used its power to disadvantage consumers. Microsoft knew, intended, conceived, and implemented this at the highest levels of the corporation.” At the center of Boies’ three-hour opening statement was the pretrial deposition of Microsoft founder and then-CEO Bill Gates. Boies used this deposition to attack the credibility of Gates and the corporation. The deposition was a major reason the government won. Boies took the Gates deposition himself. “What I was trying to do was to get him to admit that a number of acts Microsoft engaged in were engaged in for anticompetitive reasons. I did get some admissions on that score,” he says. “My second objective was to go through as much as I could and have him [Gates] state what he knew” about Microsoft’s actions in developing a market for its Internet Explorer browser. “If he was going to take the position that he didn’t know, it was going to be difficult for his underlings to come up with a lawyer-crafted explanation. Everyone knew that Bill Gates was at the center of Microsoft, and if the person at the center couldn’t come up with justifications, no one could.” The questions were very aggressive, he says, and Gates was frequently evasive. But Boies began turning this evasiveness against the witness. Throughout the opening and elsewhere, Boies says, “we would play an excerpt of Gates saying one thing, then we’d flash on the screen a document where he said the opposite.” He began his case-in-chief with James Barksdale, the CEO of Netscape. In any trial, says Boies, “you want to begin with a witness who is broad enough to lay out the case and who you have enough confidence in that the overall impression would be favorable.” Barksdale, he notes, “had lived through many of the anticompetitive practices personally.” But his cross-examinations of the witnesses called by Microsoft would provide many of the most telling moments of the trial. As with any cross-examination, Boies says, he kept the questioning short. “This is a witness that the other side has picked. I have no incentive to keep him on the stand any longer than necessary.” In the Microsoft trial, the economic expert, Richard Schmalensee, came first. He testified that Microsoft did not have monopoly power, says Boies. “I asked if a firm’s profits could indicate a monopoly,” Boies recalls. “He said no, that profits were irrelevant. I showed him an article he had written in the Harvard Law Review.” In the article, Schmalensee “ had written that profits were something to be looked at to determine if there was a monopoly.” After a pause, Boies says, “he looked at me and said, ‘What could I have been thinking of?’ “ The most devastating cross was of Microsoft Senior Vice President James Allchin. He had been in charge of the software developers who created Internet Explorer, then integrated it into Windows 98. During Allchin’s testimony, the defense played a video showing that there were certain substantial performance benefits in combining the browser with the operating system and that the system would be degraded if the computer used the Netscape browser. “The video showed that the system worked more slowly with the Netscape browser,” Boies says. “The video was essentially a fraud.” While Allchin was on the stand, Boies replayed a segment of the video, then freeze-framed it. Icons were disappearing and reappearing, indicating, he says, that “they had taken tapes of different computers running and spliced them together.” At that point, Boies says, Allchin “admitted that the tape could not be showing what it purported to show.” On Nov. 5, 1999, Judge Penfield Jackson found that Microsoft had established a monopoly and had engaged in anticompetitive acts. The judgment is now on appeal. Tips: � Be sure to keep to the point in bench trials. � Read all of the key documents personally. � Trap the key executives during their depositions.

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